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02/17/95 STEVE SULTAN v. AUSTIN HINDS

February 17, 1995

STEVE SULTAN
v.
AUSTIN HINDS



Appeal from Marshall Circuit Court. (CV-93-250). William Gullahorn, TRIAL JUDGE.

Rehearing Overruled March 24, 1995, . Certiorari Denied May 26, 1995.

Holmes, Retired Appellate Judge. All the Judges concur.

The opinion of the court was delivered by: Holmes

HOLMES, Retired Appellate Judge

Steve Sultan filed a complaint, wherein he alleged that in June 1993, Austin Hinds "unlawfully seized, detained and converted to his own use ... one 1989 FORD SUPER DUTY TRUCK ...."

Hinds filed an answer, wherein he denied the allegations of the complaint. Thereafter, Hinds filed an amended answer and a counterclaim, wherein he alleged that Sultan owed him $12,000 on an open account.

A non-jury trial was held. The trial court entered a judgment in favor of Hinds and against Sultan. Sultan filed a post-judgment motion. After a hearing, the trial court denied the motion. The entry on the case action summary sheet stated the following:

"The court has reviewed its trial notes. The court is of the opinion that under all of the circumstances shown, the taking by [Hinds's] agent was not a conversion; in the alternative, even if it was a conversion, the fair market value of the vehicle, according to [Hinds's] testimony, was approximately the same as the unpaid sum owed [to Hinds] by [Sultan]. The court did not believe [Sultan's] testimony as to value. Motion denied."

Sultan appeals. This case is before this court pursuant to Ala. Code 1975, § 12-2-7(6).

The dispositive issue on appeal is whether there is evidence to support the trial court's determination that Hinds's actions did not constitute conversion.

Initially, we would note that in a non-jury case, the trial Judge is the finder of fact and that a presumption of correctness attaches to his findings and to the judgment based on these findings. Clardy v. Capital City Asphalt Co., 477 So. 2d 350 (Ala. 1985). The resulting judgment will not be disturbed on appeal unless it is manifestly unjust, palpably wrong, or without supporting evidence. Clardy, 477 So. 2d 350.

We have reviewed the record on appeal. Suffice it to say that there was conflicting evidence presented in this case. However, it was the responsibility of the trial Judge to listen to the evidence presented ore tenus, to resolve the conflicts in this evidence, and to enter a judgment. Johnson v. Johnson, 597 So. 2d 699 (Ala. Civ. App. 1991).

Our review of the record reveals the following: In October 1991 Hinds, who owns Austin Hinds Motors, Inc., sold a 1989 Ford flatbed truck to Sultan. In order to purchase the vehicle, Sultan made a substantial down payment and signed a promissory note, wherein he agreed to pay the remainder of the purchase price in three equal installments. It is undisputed that Sultan made one installment payment and failed to pay the balance of the purchase price.

Immediately upon purchase, the vehicle was transported to the New York City area, which is where Sultan resides. A certificate of title for the vehicle was issued by the State of New Jersey in December 1991. This certificate ...


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